Siyasa – Governance: Theory

• Islamic Law recognises the need to obey to those in power and their role as upholders of Shari’a

• Political authorities must rule in accordance to Shari’a, from which they derive their legitimacy

Siyasa – Governance: Practice

• The ulama lack instruments for coercion and must lean on the political authorities

• Most of the legal matters except Family Law have been historically controlled by the state power

• The government is also able to independently produce legislation in the form of qanun (state laws)

Caliphate

• The Caliph (Imam for the Shi’as) is the religious and political guide of the Muslim community

• Originally selected, the position of Caliph became hereditary (in the line of the descendants of Ali, according to the Shias)

• Ideally a member of the Qurayshites (the clan of Muhammad from Mecca), the position was ultimately assumed by the Ottoman sultans

Rival Caliphates around 1000 AD

Sultanat - Secular authority

• Initialy local rulers were legitimased and officially appointed by the Caliphs, later they became the protectors of the Caliphs

• Thinkers like Ibn Khaldun (1332-1406) justified the need for political authority in order to guarantee the life and property of the citizens

• Independent rulers started legislating more prominently after the fall of the Abbasids dynasty (1258)

Political quietism in Islam

• Verse of the Qur’an intimating Muslims to obey Allah, his messenger and those in command among them

• Ibn Taymiyyah (Hanbali school- 1263-1328) statement that 60 years of tyranny are better than one night of fitna (civil war)

• Rebelling against a ruler is required when his actions are contrary to Islam

The Ottoman Empire (1299-1918)

Ottoman qanun

• Ottoman sultans inherited the title of Caliphs from the Abbasids in 1517.

• Ottoman empire made large use of Islamic qazis in its administration, but they were subjected to the authority of the sultans.

• Suleyman the Magnificent (r. 1520-1566) extended the use of qanun with the collaboration of the Great Mufti.

Ottoman Constitutional reforms

• 1826 – Soppression of the Janissaries• 1839 – Edict of Gulhane, beginning of the

Tanzimat (reorganisation) moving towards equality among citizens and modern reforms

• 1856 – Reform Edict, non-Muslim minorities given more autonomy from the state at the request of foreign countries

• 1876 – First Constitution, Parliament• 1877 – Mağalla, attempt at creating a civil code

by integrating foreign models and Shar’ia

Egyptian judicial reforms

• 1875 - a system of Mixed Courts is created to streamline administration of justice in cases involving foreigners, based on the French civil code

• 1883 – Native courts are created along the same lines, the two will eventualy merge in unified National Courts

• 1948 – a new comprehensive civil code is drafted, again based on the French one and with reference to Shar’ia

Tunisian Civil Code• 1896-1899 – a commission produces the draft

of a civil code based on Roman and Islamic Law (D. Santillana)

• 1907 – the draft is approved by Islamic scholars and promulgated (despite critics by French jurists)

• 1956 – independent Tunisia enacts a progressive code of personal status which gives complete equality to women in matters of marriage and divorce

Anglo-Muhammadan Law

• Colonial rule often favoured Islamic Law over customary laws, for example in British India or French Algeria

• Civil law matters (and until 1860 criminal cases too) were administered by British magistrates supported by Islamic scholars

• English common law influenced the application of Shar’ia over time

Afghanistan

Main characters of Afghanistan• Landlocked, mountainous country, few areas of

agricultural surplus production• Crossroads of commerce, joining political

centres beyond its borders• Mosaic of ethnicities, segmented and

acephalous society ruled by customary laws• Separation between urban areas and

countryside (hokumat and yaghistan), tribal resilience to state control, legal pluralism (Islamic law, state law, customary law)

Afghan ethnicities

Tribal confederation and Durrani Empire (1747-1819)

• Formation of Afghanistan from the decline of neighbouring empires, Moghuls and Safavids

• First unification under Ahmad Shah Durrani, elected as ruler by a Loya Jirga (tribal assembly)

• King as primus inter pares, tribal balance and expansion towards the outside, creation of an empire with parts of India and Persia

Territorial fragmentation 1773-1826: From the empire to rival kingdoms

Afghan kingdoms and foreign interventions (1819-1880)

• Loss of tribal balance, dynastyc struggles, shrinking of territorial expansion and fragmentation

• Patrimonial rule, weak administration and state power

• Competition between colonial powers, foreign intervention (Anglo-Afghan Wars: 1838-1842; 1878-1880)

• Slow re-unification of Afghan territory under Dost Muhammad (1826-1839; 1843-1863)

The Great Game between Russia and Britain

After the British defeats, Afghanistan is seen as “Graveyard of Empires”

Absolutism and Statehood (1880-1901)

• Abdur-Rahman Khan establishes full state control over the territory of nowadays Afghanistan, monopoly of force of the state

• Internal colonialism on semi-independent areas (War on the Hazaras 1891-93, conquest of Kafiristan 1895), create a police state to repress revolts

• Divinely-sanctioned monarchy, absolutism• Modern army and loyal state administrators

(ghulam baccha) on the model of janissaries

Conquest and Revolt under Abdur-Rahman

Nationalism and Modernism (1901-1919)

• Mahmud Tarzi, Afghan intellectual and disciple of Al Afghani, becomes influential at court, start of the Afghan modernist movement

• Introduction of western technologies and knowledge (translations of books), emphasis on education for the reform of Muslims

• Political ideals: Pan-Islamism, Anti-imperialism, Asian unity

Mahmud Tarzi, father of Afghan modernism

Shah Amanullah Ghazi (1929-1919)

Amanullah’s reformism (1919-1929)

• International Relations: Afghanistan became member of the Society of Nations, started foreign diplomacy

• Education: Compulsory primary education, including efforts at educating girls

• Military: universal draft system enforced countrywide• Taxation: surveys and rationalisation of land tax, payment

in cash and not in kind• Religion: state education for mullahs and qazis • Society: Slavery abolished, civil rights and ID cards,

minimum age for marriage, emancipation of women • Legal: First Afghan Constitution, separate judiciary and

codified state laws

Amanullah’s Constitution of 1923

• Legislative committee (Mahfil-e Qanun) formed in 1919, studied Hanafi laws and Turkish reforms

• In February 1923, the Nezam-nama was promulgated, giving Afghanistan a cabinet, state council with legislative functions, advisory bodies and secular courts

• Emphasis on civil rights, education; prevalence of penal and civil codes even in Shari’a courts

Reactions to the Constitution• Many provisions, in particular those on

conscription, taxation and marriage incurred the hostility of the tribes and the clergy

• Militant frontier mullahs, disappointed by the state dwindling support for their anti-British activities and its interference in marriage customs, preached rebellion among the tribes of Khost in 1924

• The rebellion threatened Kabul, Amanullah was labeled an heretic and a dynastic rival appeared in the rebels’ ranks

The Loya Jirga of 1924• Religious scholars refused to support the king

unless the Constitution was changed• Penal code was criticised: ta’zir punishment

could not be pre-determined by the state• Marriage issues were debated, especially

polygamy and child marriage, and the state made to retract on them

• The conservative ulama laid the blame on the liberal Ulama Council which had endorsed the Constitution, arguing it had mislead the king

Amanullah’s last years• The push for reforms resumed after a

European “Grand Tour” of the royal couple in 1927-28

• Amanullah convened a another Loya Jirga in August 1928, reversing decisions of 1924 and effecting even more radical social reforms

• Kabul’s most prominent ulama plotted against the king, the outbrak of revolts East and North of Kabul forced his abdication in January 1929, followed by a period of civil war

The Restoration of the 1930s• Most of Amanullah’s reforms were cancelled,

modernism was abandoned• The Constitution of 1931 heavily stressed

adherence to Islam and the preminence of Shari’a over positive law made by the state

• State efforts at challenging the role of religious and tribal leaders ended, these were rather co-opted by the state (Ulama Society)

• Few laws passed during the next 30 years in the form of guidelines/principles (usulnama)

New Democracy (1964-73)

• Neutrality during the Cold War allowed for opening to foreign investments and ideas

• The state had re-gained strength compared to the rural communities

• An educated young class urged for a change• The democratic experiment started by King Zaher

Shah included the introduction of a parliamentary representation (elected Lower House – Wolesi Jirga; elected/appointed Upper House – Meshrano Jirga)

Modernisation of urban society (1960-70s)

The Constitution of 1964• Puts the Parliament and the king at the source of the

legislative action (while keeping consistency with Islam as a condition for it)

• Affirms individual rights to property, thought and expression, association, education, health and the inviolability of the home

• Legislative action remained weak due to the conflict between Parliament and executive and the influence of conservatives (Marriage Law of 1971 carries almost no reforms)

• Shari’a remains the default choice in courts in the absence of more specific laws

Republic and Civil Code (1973-78)

• The Republic is declared in July 1973 after a coup d’état inside the royal family, a single party system is created

• The Constitution of 1977 is similar to the 1964 model, while accentrating much power in the hands of the President, Sardar Mohammad Daud, and in the Loya Jirga as a consultive body

• The Civil Code of 1977 is based on the Egyptian model, and on the Iranian model for what concerns the laws on personal status

The revolutionary decrees of 1978• The People’s Democratic Party of Afghanistan (PDPA - Khalq

faction) takes power in April 1978, it soon announces broad reforms; the most controversial decrees are:

• n° 6 concerning loans and mortgages (cancelation) • n° 7 concerning nuptial gifts and marriage expenses

(prohibiting walwar and setting a ceiling to mahr)• n° 8 concerning land reform (confiscation of excessive

landholdings and re-distribution to landless people)• Opposition to the decrees couples with the insurgent

activities of radical Islamist militants operating from Pakistan and results in an anti-state reaction in most provinces of Afghanistan, sparking Soviet intervention in December 1979

Jihad against the Soviet Union (and the Afghan state) 1978-1992

The Constitution of 1980 (provisional)

• The Parcham faction of PDPA, brought to power by the Soviet Army, tries to redress previous excesses which antagonised rural areas of the country

• The constitution mentions adherence to Islamic principles, together with other principles like the Universal Declaration of Human Rights

• Islam is mentioned only as a religion, not as the official religion of state and not as a source of law

• Main reference is to the objectives of the revolution• Some laws touch legal spheres traditionally

dominated by Shari’a (inheritance)

The Constitution of 1987• References to Islam are more significant,

comparable to those of the pre-revolutionary period (Islam is the official religion and every law must be consistent with it)

• The constitution is an attempt at pacifying the country, part of the reconciliation policy started by President Dr.Najibullah

• In a revision made in 1990, the PDPA becomes the National Fatherland Front, in the hope to attract minorities and less ideological mujaheddin commanders

Administration in mujaheddin areas

• Rejecting state control rural communities reverted to the time-honoured mix of Islamic and customary law

• Spontaneous local fronts of rebels were soon absorbed by better organised and funded Islamist parties (7 major Sunni parties based in Peshawar; Shi’a parties based in Quetta)

• mujaheddin did not usually enforce a strict application of Shari’a, they more often adopted more ideological-political (Hezb-e Islami of Hekmatyar) or pragmatic military types of organisation (Jamiat-e Islami of Massud)

The constitutional project of 1993

• Drafted by secular-trained jurists and approved by a council of mullahs

• Afghanistan is declared an Islamic state, with the Qur’an as its fundament

• Society and social life must be organised according to the Qur’an and the Sunna

• Never implemented, as the mujaheddin factions started fighting against each other

Radicalisation of society during the years of conflict

The Taleban Emirate (1996-2001)• Emphasis on “promotion of virtue and

prohibition of vice”, wide use of repressive force and coercion, interference of the state over society

• Non-traditional use of fatwas as tools for governance: state-decreed, police-enforced and ruled by the amir al mo’minin (commandr of the faithful) Mullah Muhammad Omar

• Limitations on women rights and enforced seclusion

Taleban enforcement of public moral conduct

Pashtunwali and customary laws• Not codified in a single text, oral “living”

tradition embodied by the community elders• Based on individual values (pride, bravery,

hospitality, equality) and on mechanisms for dispute solution (retaliation, compensation, forgiveness) regulated and sometimes enforced by collective bodies (jirga, shura, arbaki)

• War, militancy and foreign intervention have altered the balance of power inside rural communities

Post 2001 reconstruction of the State

• Bonn Conference in December 2001: various Afghan factions get together to replace the Taleban with international support

• Emergency Loya Jirga (June 2002) selects an interim government, based on a compromise solution between technocrats and “warlords”

• Constitutional Loya Jirga (December 2003) gives the country a new set of democratic institutions

• Presidential and Parliamentary elections (2004; 2005), the first electoral consultation in 35 years

Afghanistan’s new government

The Constitution of 2004

• Afghanistan is declared an Islamic Republic, no laws contrary to Islamic “beliefs and rules” can be promulgated

• All discrimination of ethnicity, sex or religion is rejected, every citizen is equal before the law (reserved quotas for women inside the Parliament)

• No official role for the Hanafi madhab, Shi’a madhab (Ja’fari) is recognised too

• The Parliament is the highest legislative organ

The Media Law of 2009

• A very modern and sophisticated Media Law is passed by the Parliament, but the president refuses to sign it

• A second vote by 2/3 of the Lower House puts the law into effect but the matter is referred to the Supreme Court who blocks it for a long period before ruling in favour of the Parliament

• Amendments to increase state control on media are introduced in 2012 amidst protests by journalists’ unions

The Shi’a Law on Personal Status of 2009

• Art. 131 of the Costitution recognises the right of the Shi’as to adjudicate family disputes according to Ja’fari jurisprudence

• Shi’a Law on Personal Status regulates the duty of sexual intercourse of a wife to her husband, dereliction of these duties can be punished by the man

• Afghan women (both Shi’a and Sunni) protest in front of Shi’a mosques in Kabul

Taleban courts

• Lack of trained personnel, low salaries and insecurity jeopardize the application of justice in rural areas by state courts

• Taleban insurgency is able to re-establish a presence in most Afghan provinces by 2007, it also starts to administer justice by way of itinerant courts

• Taleban courts act often in accordance to customary laws, are quicker and cheaper than state justice and do not always side with the party with the strongest political/economic power (as state courts often do)

• The state’s weak judiciary is a main propaganda tool for the insurgency in rural areas (however, Taleban also punish those who resort to state courts)

Criticism of democratic institutions

• Increasing reports about corrupted practices and flaws in the new Afghan institutions have spoiled the unconditional consensus around “democracy” which existed in 2001

• Long-term foreign presence has created dissatisfaction and many legal issues connected to Human Rights or gender equality are portrayed as foreign-driven agenda by conservatives

• Islamic Law and principles are once again used more often in a political sense rather than with consideration to their correct interpretation and application